United States Fidelity & Guaranty Co. v. N. J. B. Prime Investors

By this action the plaintiff, the surety on a payment and performance bond, seeks reimbursement from the defendant N. J. B. Prime Investors (Investors) for monies allegedly advanced under the bond. Investors filed a motion to dismiss on the grounds that the plaintiffs complaint failed to state a claim upon which relief could be granted (Mass.R.Civ.P. 12[b][6], 365 Mass. 755 [1974]) and that the plaintiff failed to join necessary parties (Mass.R.Civ.P. 12[b][7], 365 Mass. 755 [1974]). The trial judge allowed the motion on both grounds. Since he had before him at the hearing on the motion (and…